State Ex Rel. Oklahoma Bar Ass'n v. Maddox

BAR DISCIPLINARY PROCEEDING

T1 The complainant, Oklahoma Bar Association (Bar Association), charged the respondent, John G. Maddox, (respondent/Maddox) with one count of professional misconduct resulting from a guilty plea on a charge of embezzlement by a public official. The Bar Association alleged that the attorney violated Rule 8.4, 5 0.8.2001 Ch. 1, App. 3-A,1 and Rule 1.3 of the Rules Governing Disciplinary Proceedings, 5 0.$.2001 Ch. 1, App. 1-A.2 The Bar Association sought a one-year suspension and the payment of costs.3 Upon de novo review, we hold that the respondent's license to practice law should be

suspended for two years beginning on March 22, 2005, the date in which the respondent began a self-imposed suspension from the practice of law. The respondent is assessed the costs of this proceeding in the sum of $431.07 for payment not later than ninety days after this opinion becomes final.

FACTS

T2 In 1994, the respondent, a licensed lawyer since 1974, was elected as District Attorney for District 8. On September 10, 1999, Maddox resigned from office amidst an ongoing investigation regarding his use of a state owned automobile and his submission of travel claims. The respondent was indicted by the Multicounty Grand Jury on March 2, 2000. He acknowledged that:

6

6 . while driving a vehicle owned by the State of Oklahoma, I filed claims for mileage and received monies from the State for mileage on the vehicle. The law does not allow receiving funds when driving a State owned car, but only for a privately owned vehicle and the funds I received were improper and unlawfal."

Maddox entered into a plea agreement and plead guilty to one count of embezzlement by a public official in violation of 21 0.8. Supp. 1999 § 341 4 on March 22, 2000, and received *207a deferred sentence, with the condition that he pay $17,404.01 in restitution to the State of Oklahoma within 80 days of the guilty plea. He was placed on unsupervised probation for two years, and was disqualified from holding public office in the State of Oklahoma. Immediately after he resigned from office, the respondent worked on construction for about nine months until the middle of the year 2000, when he began assisting another lawyer with various matters.

3 On September 8, 2000, six months after the indictment was returned, the General Counsel for the Oklahoma Bar Association wrote to the respondent to tell him that an investigation was being opened based on the circumstances surrounding his indictment. The letter noted that the respondent "may" have committed actions which would constitute a violation of the Rules of Professional Conduct. Maddox was given twenty days to respond to the letter and he did so on October 2, 2000, admitting the facts which supported his plea agreement.

14 Nearly one year later, on August 27, 2001, a complaint was filed with the Chief Justice of the Supreme Court. The respondent promptly answered the complaint on September 14, 2001, and both pleadings were filed with the Clerk of the Supreme Court on September 17, 2001. By May 15, 2002, the two year deferred sentence had expired, Maddox had fully complied with all the imposed conditions and the record was expunged by order of the court.

T5 On March 22, 2005, the respondent began a self-imposed suspension from the practice of law in anticipation of a hearing on disciplinary proceedings before the trial panels.5 Five years and five months after Maddox was indicted, the matter came before the Professional Tribunal Panel (trial panel) on January 17, 2006. On February 8, 2006, the trial panel, apparently without considering the delay in these proceedings, recommended that Maddox be suspended for two years and one day and that he be assessed the costs of this proceeding. The Bar Association filed its application to assess costs on February 22, 2006. Finally, almost seven years after the indictment was filed, the matter was assigned to this office on December 7, 2006.

16 THE RESPONDENTS CONDUCT WARRANTS A TWO YEAR SUSPENSION AND THE IMPOSITION OF COSTS BEGINNING RETROACTIVELY FROM MARCH 22, 2005, THE DATE IN WHICH THE RESPONDENT BEGAN A SELF-IMPOSED SUSPENSION FROM THE PRACTICE OF LAW.

'I 7 The trial panel recommended two years and a day suspension. The Bar Association concedes that it failed to prosecute this action in a prompt and timely manner and, as a *208result, it recommends the imposition of a one year suspension. Maddox argues that considering the totality of the cireumstances, this cause warrants a public censure,6 but he agrees to the imposition of costs.

T8 Rule 7.1 of the Rules Governing Disciplinary Proceedings, 5 0.8.2001 Ch. 1, App. 3-A, provides that a lawyer who has been convicted of a crime which demonstrates unfitness to practice law regardless of whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial shall be subject to discipline regardless of pendency of an appeal.7

T 9 Rule 7.2 of the Rules Governing Disciplinary Proceedings, 5 0.$.2001 Ch. 1, App. 3-A requires the clerk of any court to send certified copies of the indictment or the judgment and sentence to the Chief Justice and to the General Counsel of the Oklahoma Bar Association within 5 days. Upon receipt of this documentation, the Supreme Court is mandated to suspend immediately the lawyer from the practice of law.8 Rule 7.3 of the Rules Governing Disciplinary Proceedings, 5 0.$.2001 Ch. 1, App. 3-A provides the lawyer an opportunity to show cause why the suspension should be set aside. Upon good cause shown, the Court may set aside the suspension if it appears to be in the interest of justice to do so, "due regard being had to maintaining the integrity of and confidence in the profession." 9

{ 10 The integrity of and confidence in the profession-therein lies the problem. This Court is faced with a dilemma. The system has not worked. Rule 7 needs to be amended. Because the respondent pled guilty and received a deferred sentence on a plea agreement, he apparently escaped Rule 7 because he was not "technically" convicted for the same acts of which had he been convicted would have resulted in an immediate suspension. This Court was not advised within 5 days of the guilty plea nor within 5 weeks or 5 months apparently because he wasn't "convicted" of the crime, even though he admitted his guilt.

T11 The first news we received of the deferred sentence was September 17, 2001, when a copy of the Bar complaint was filed with the Clerk of the Supreme Court. The initial hearing before the trial panel was set for October 18, 2001, but it was continued to November 1, 2001. No hearing was held in November of 2001. Instead, on March 1, *2092002, the November hearing was re-set for April 9, 2002. On April 9, 2002, the hearing was continued indefinitely. Nearly three years later, on February 3, 2005, the April 9, 2002, hearing was re-set for March 22, 2005. On March 28, 2005, an order was filed striking the March 22 hearing. The hearing was finally held on January 17, 2006, with the General Counsel advising the respondent that he would recommend a one-year suspension.

1 12 Rule 6.6 of the Rules Governing Disciplinary Proceedings, 5 0.8.2001, Ch. 1, App. 1-A, provides in pertinent part:

"Within ten (10) days after receiving notice of the filing of a complaint, the Chief Master ... of the Professional Responsibility Tribunal shall select three members thereof to serve as a trial panel of Masters ..." (Emphasis supplied.)

Rule 6.7 of the Rules Governing Disciplinary Proceedings,5 0.8.2001, Ch. 1, App. 1-A, provides:

"The Chief Master or Vice-Chief Master of the Professional Responsibility Tribunal shall notify the respondent and the General Counsel of the appointment and membership of the Trial Panel and of the time and place for hearing, which shall not be less than thirty (30) nor more than sixty (60) days from the date of appointment of the Trial Panel. Extension of this period may be granted by the Chief Master (or the Vice-Chief Master, in case of the unavailability of the Chief Master) for good cause shown." (Emphasis supplied.).

113 In a letter of support dated January 12, 2006, Thomas J. Morris, III, Maddox's employer, wrote to the Oklahoma Bar Association. He said that he was enclosing a copy of a letter he wrote on October 11, 2001, "since the original may have been misplaced during the ages." Indeed. Mr. Morris also observed that he had seen the respondent "grieve over" this matter, waiting, without knowing what the Oklahoma Bar Association was going to do because his day in court never came. C.D. Northcutt, a Ponea City attorney, wrote that the matter had not been handled expeditiously and that the respondent had suffered from being left in limbo. Fred Boettcher, another Ponea City attorney, noted in his letter that the Oklahoma Bar Association had moved for continuances which had unduly delayed the matter, that further proceedings were unfair and unnee-essary, and that the respondent had suffered personal agony not knowing what tomorrow would bring.

114 This attorney did something really wrong. He betrayed his trust as a public official. He put gas in his pickup and charged the gas on a state credit card and then he charged for mileage. He has completed his deferred sentence. Had the matter been held in a timely manner and had we disbarred him, he would likely be eligible to apply for reinstatement. Instead, through a tragedy of errors, we now seek to impose the discipline which should have been imposed much earlier.

115 There is equal blame to share: Our failure to monitor, the Bar Association's failure to prosecute, and the respondent's lawyer's lack of reasonable diligence in representation. These are the facts. They cannot be varnished, spun, or obliterated. There has been a breakdown in the system. This does not meet the constitutional requirements of due process,10 nor of the constitutional right to a speedy trial.11 Limbo *210does not maintain the integrity and confidence of the profession, it ignores it.

$16 When it took nearly two years from the time a formal complaint was filed until a trial panel hearing was held in State ex rel. Oklahoma Bar Ass'n v. Benefield, 2005 OK 75, 125 P.3d 1191, the Court could not have realized that this was a common practice.12 It must stop. In Benefield, there was nothing in the record to explain the excessive delay. Here, in an apparent attempt to appease the Court, General Counsel and respondent's lawyer offered an Alphonse-Gaston explanation of culpability for the delay:

1) In 1999, respondent's daughter was in a plane erash;

2) Respondent's lawyer had surgery followed by a severe infection;

3) Respondent's lawyer was on television in the Nichols and McVeigh cases and ministered to the needs of victims;

4) General Counsel's sister died and the funeral was held on the date of the hearing scheduled March 22, 2005, but the hearing was postponed until January 17, 2006.

These reasons fail to show good cause for such delay. Co-counsel for the respondent appeared at the hearing on January 17, 2006. The General Counsel's office of the Oklahoma Bar Association has almost a million dollar budget and employs four other lawyers who routinely handle disciplinary proceedings.

§17 We would have agreed to the discipline imposed by the professional tribunal panel had this cause been presented in a timely and orderly manner. However, this Court is the ultimate arbiter of appropriate sanctions in bar discipline cases.13 We may choose to reject or to accept the trial panel's recommendations.14 We are not bound by agreed findings, conclusions of law or recommendations for discipline.15 Rather, the ultimate responsibility for imposition of professional discipline is ours alone. The Court's review is de novo in considering the record presented as well as the recommendations for discipline.16

T18 Discipline is fashioned to coincide with the discipline imposed upon other lawyers for similar acts of professional misconduct.17 Although this Court strives to be evenhanded and fair in disciplinary matters, discipline must be decided on a case-by-case basis because each situation involves unique transgressions and mitigating factors.18 There can be little doubt that the attorney has brought discredit upon the legal profes*211sion subjecting himself to discipline.19 Discipline should be sufficient to persuade the attorney that such conduct will not be tolerated.20 Mitigating cireumstances may be considered in evaluating both the attorney's conduct and assessing the appropriate discipline.21

{19 Here, the respondent has been totally cooperative with the Bar Association. Maddox has admitted his conduct and violation of the Rules and taken it upon himself to begin self imposed discipline. Furthermore, the respondent has not been previously disciplined. Given the totality of the cireum-stances, the respondent's license to practice law is suspended for two years beginning on March 22, 2005, the date in which the respondent began a self-imposed suspension from practicing law. The respondent is assessed the costs of this proceeding in the sum of $431.07 for payment not later than ninety days after this opinion becomes final.

CONCLUSION

120 The nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of the practitioners of the law is solely vested in this Court.22 Every lawyer is presented as a person worthy of competence and honesty in the performance of professional activities. It is our difficult duty to withdraw the license to practice law if necessary to protect the interest of the public, the legal profession and this tribunal.23 Any other approach would rightly confuse or equate a lawyer's state franchise with a license to cheat the public.24 Upon a de novo review of the record, we determine that the respondent's conduct warrants a two year suspension beginning on March 22, 2005, the date in which the respondent began a self-imposed suspension from practicing law and the imposition of $481.07 in costs dues not later than ninety days after this opinion becomes final.

RESPONDENT SUSPENDED; COSTS IMPOSED.